|
0 TEREX.,
<br />delivered, then Seller shall be entitled to charge, as compensation, any additional costs incurred related to such delay. If the Products
<br />are not shipped or delivered by the date which is ten (10) days from the first date they are ready to be shipped or delivered, then
<br />Buyer's order shall be deemed cancelled and Seller may, in its sole discretion, sell such Products to another buyer without any liability
<br />or responsibility to Buyer whatsoever. Seller shall have the right to keep payments on account already received from Buyer, and the
<br />difference between the sales price (increased by any other and all further costs, including but not limited to attorney's fees and
<br />expenses, storage and other costs, and interest accrued thereon) and the price received from another buyer shall constitute a debt of
<br />Buyer and bear interest at the same rate set forth in Section 2 herein. Seller shall be entitled to claim for any further damages suffered
<br />as a consequence of Buyer's breach of its obligations hereunder.
<br />6.Cancellation. Prior to delivery to place of shipment, a Product order may be cancelled only with Seller's prior consent and upon
<br />terms indemnifying Seller from all resulting losses and damages. Seller shall have the right to cancel and refuse to complete a Product
<br />order if any term and/or condition governing this agreement is not complied with by Buyer. In the event of cancellation by Seller, or in
<br />the event Seller consents to a request by Buyer to stop work or to cancel the whole or any part of any order, Buyer shall, in the event
<br />that Seller asks Buyer to do so, make reimbursement to Seller, as follows: (i) any and all work that can be completed within thirty (30)
<br />days from date of notification to stop work on account of cancellation shall be completed, shipped and paid in full; and (ii) for work in
<br />progress and any materials and supplies procured or for which definite commitments have been made by Seller in connection with the
<br />order, Buyer shall pay such sums as may be required to fully compensate Seller for actual costs incurred, plus fifteen percent (15%).
<br />Buyer may not cancel any order after Seller's delivery to place of shipment. Orders for "Special" Equipment may not be cancelled after
<br />acceptance, except by Seller. Items of "Special" Equipment are those that differ from standard Seller specifications, have a limited
<br />market, or incorporate specifications that have been determined for a specific application. Determination of whether an item of
<br />Equipment is "Special" shall be made by Seller in its sole discretion.
<br />7. Inspection and Acceptance. Buyer agrees that it shall inspect the Products immediately after receipt and promptly (in no event later
<br />than fifteen (15) days after receipt) notify Seller in writing of any non -conformity or defect. Buyer further agrees that failure to give such
<br />prompt notice or the commercial use of the Products shall constitute acceptance. Acceptance shall be final and Buyer waives the right
<br />to revoke acceptance for any reason, whether or not known by Buyer at the time of such acceptance. The giving of any such notice by
<br />Buyer shall automatically cause the provisions of Seller's warranty to apply and govern the rights, obligations and liabilities of the
<br />parties with respect to such nonconformity or defect, provided under no circumstances shall rejection give rise to any liability of Seller
<br />for incidental or consequential damages or losses of any kind. Seller shall not be bound by any agent's, employee's or any other
<br />representation, promise or inducement not set forth herein. Seller's catalogues, technical circulars, price lists, illustrations, drawings and
<br />any other similar literature are for Buyer's general guidance only and the particulars contained in them shall not constitute
<br />representations by Seller and Seller shall not be bound by them.
<br />8. Warranty for New Products. Seller warrants its new Equipment and Parts manufactured and sold worldwide, to be free, under
<br />normal use and service, of any defects in material or workmanship for a period of twelve (12) months from the date of delivery(as
<br />limited by Seller's Limited Product Warranty); provided that Buyer sends Seller written notice of the defect within thirty (30) days of its
<br />discovery and establishes that: (i) the Equipment has been operated and maintained in strict compliance with Seller's operating and
<br />maintenance manuals ; and (ii) the defect did not result in any manner from the intentional or negligent action or inaction of Buyer, its
<br />agents or employees and (2) a new machine registration certificate has been completed, signed and delivered to the Seller within thirty
<br />(30) days of the Equipment's "in-service" date. If requested by Seller, Buyer must return any defective Product to Seller's manufacturing
<br />facility, or other location designated by Seller, for inspection, and if Buyer cannot establish that conditions (i) and (ii) above have been
<br />met, then this warranty shall not cover the alleged defect. Failure to give written notice of defect within such period shall be a waiver of
<br />this warranty and any assistance rendered thereafter shall not extend or revive it. Accessories, assemblies and components included in
<br />the Products of Seller, which are not manufactured by Seller, are subject to the warranty of their respective manufacturers. This
<br />warranty shall not cover any item on which serial numbers have been altered, defaced or removed. Maintenance and wear parts are not
<br />covered by this warranty and are the sole maintenance responsibility of Buyer. This warranty is limited to the original purchaser or end -
<br />user if sold to a distributor, and is not assignable or otherwise transferable without written agreement of Seller. THIS WARRANTY IS
<br />EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING THE WARRANTIES
<br />OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ALL OTHER OBLIGATIONS OR LIABILITY ON
<br />SELLER'S PART. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE LIMITED WARRANTY CONTAINED HEREIN.
<br />Seller neither assumes nor authorizes any other person to assume for Seller any other liability in connection with the sale of Seller's
<br />Products. This warranty shall not apply to any of Seller's Products or any part thereof which has been subject to misuse, alteration,
<br />abuse, negligence, accident, acts of God or sabotage. No action by either party shall operate to extend or revive this limited warranty
<br />without prior written consent of Seller
<br />9. Warranty for Used Equipment. Used Equipment sold hereunder is sold on an "AS IS, WHERE IS, WITH ALL FAULTS" BASIS
<br />WITH NO WARRANTIES WHATSOEVER, EXCEPT AS TO TITLE, UNLESS OTHERWISE SPECIFICALLY AGREED IN WRITING BY
<br />BUYER AND SELLER. SELLER ASSUMES NO RESPONSIBILITY FOR THE CONDITION, SAFETY, LEGAL COMPLIANCE, OR
<br />USABILITY OF THE USED EQUIPMENT AND MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH
<br />RESPECT TO THE USED EQUIPMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY
<br />OR FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE
<br />CONDITION OF THE USED EQUIPMENT, NOR THE SUFFICIENCY OF ANY WARNINGS, INSTRUCTIONS OR MANUALS
<br />PROVIDED WITH THE USED EQUIPMENT. Seller recommends and Buyer acknowledges that Buyer should contact the original
<br />manufacturer to obtain all available information for the used Equipment, including but not limited to product manuals, warnings, safety
<br />bulletins, recall notices, and instructional placards before using the used Equipment. Seller shall not be responsible for providing such
<br />information. Buyer agrees not to assert any claims against Seller with respect to the used Equipment or its use. Buyer agrees that it
<br />shall inspect the used Equipment prior to issuance of a purchase order for such Equipment and acknowledges that it is not relying upon
<br />Clty COUI]3A rex USA, LLC dba Terex Utilities, Terms and C di As of Sale, U.S. and Canada (exuept u1?eQ?L. 1 June 2023
<br />
|